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Andhra High Court · body

2007 DIGILAW 759 (AP)

R. MARUTHI PRASAD v. STATE OF A. P.

2007-08-09

K.C.BHANU

body2007
( 1 ) TO quash the F. I. R. No. 43 of 2007 of Rural police Station, Proddatur, Kadapa District, the present Criminal Petition is filed. ( 2 ) A private complaint is lodged by the second respondent/complainant alleging that the complainant, during the course of his business transaction, contracted 4 or 5 debts and he said to have issued post dated cheques, but they were dishonoured and therefore his creditors filed private complaints registered as s. T. C. Nos. 49 of 2003, 54 of 2004 and 65 of 2004 before the I Additional Judicial Magistrate, proddatur against him for the offence under section 138 of the Negotiable Instruments act, 1881 for dishonour of the cheques. Thereupon, the complainant approached the petitioner/accused, who is an advocate, with confidence to appear in the above cases and defend him. Subsequently, the petitioner herein filed criminal case against one c. Subramanyam, the petitioner herein colluded with the said Subramanyam and got one criminal case dismissed for default on 6-5-2004 by not informing the complainant about the date of hearing of the case. The second respondent filed the petition before the court for condonation of complainant'sabsence during hearing but the petitioner deliberately failed to submit the petitioner to the Court. In respect of other cases, the petitioner did not evince any interest to complete the proceedings. Therefore, the complainant got engaged another advocate and obtained certified copy. It is further alleged that the petitioner herein voluntarily created insolvency proceedings and filed the same in I. P. No. 99 of 2003 on the file of the Senior Civil Judge, proddatur by forging signatures of the complainant and without his knowledge and consent with mala fide intention to see that he would not recover any amount from his debtors who issued cheques. But, the same was got dismissed by reporting no instructions on 2-8-2005. This fact was known to the complainant only after relation with the petitioner was strained. Then, the complainant got issued a legal notice calling upon him to explain about the created insolvency proceedings and dismissal of the criminal complaint. Hence, the present complaint. The complaint was referred to police who registered the same as crime no. This fact was known to the complainant only after relation with the petitioner was strained. Then, the complainant got issued a legal notice calling upon him to explain about the created insolvency proceedings and dismissal of the criminal complaint. Hence, the present complaint. The complaint was referred to police who registered the same as crime no. 43 of 2007 for the offences under Sections 193, 196, 465 and 468 I. P. C. ( 3 ) THE learned counsel for the petitioner contended that the second respondent herein knows about filing of the insolvency proceedings and that he himself filed a petition inn S. T. C. No. 49 of 2004 admitting the factum of filing of the insolvency proceedings and so question of false evidence or forging signature of the complainant does not arise; that unless the complainant gives full details of his creditors numbering about 36 and the debts incurred by him, it would not be possible for an advocate to fabricate or state those debts and the names of the creditors; that with a mala fide intention to black mail the petitioner/advocate, the present complaint is lodged. Hence, the prayed to quash the impugned proceedings. ( 4 ) ON the other hand, the learned counsel forthe second respondent contended that the petitioner, who is an advocate, without instructions of the complainant, filed the insolvency petition by forging the signatures of the complainant; that when a prima faciecase is made out and so, it is the statutory duty of police to conduct investigation. Hence, he prayed to dismiss the Criminal Petition. ( 5 ) UNDER Section 193 I. P. C. , whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence forthe purpose of being used in any stage of a judicial proceeding, shall be punished. Under Section 196 I. P. C. , whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricate, shall be punished. ( 6 ) SECTION 465 I. P. C. deals with punishment for forgery. Section 468 I. P. C. deals with forgery for the purpose of cheating. Under Section 196 I. P. C. , whoever corruptly uses or attempts to use as true or genuine evidence any evidence which he knows to be false or fabricate, shall be punished. ( 6 ) SECTION 465 I. P. C. deals with punishment for forgery. Section 468 I. P. C. deals with forgery for the purpose of cheating. Necessary ingredients to constitute the offence of cheating are as follows: " (a) A person deceives any person (b) He fraudulently ordishonestly induces the person so deceived- (i) to deliver any property to any person, or (ii) to consent that any person shall retain any property or (C) He intentionally induces the person so deceived to do or omit anything which he would not do or omit if not deceived and which act etc. , causes or is likely to cause damage or harm to that person. " Deceitful, dishonest or fraudulent representation to a person and inducing that person thereby to deliver a property, is an essential ingredient to constitute an offence of cheating. Further, it is not necessary to establish both wrongful gain and wrongful loss and it is enough to establish existence of either of them. To establish the charge under Section 420 i. P. C. , it must be proved not only that the accused cheated someone, but also that by doing so he dishonestly induced the person who was cheated to deliver any property, etc. A person can be said to have done a thing dishonestly if he does so with an intention of causing wrongful gain to one person or wrongful loss to another person. ( 7 ) THE necessary ingredients of offence of 'forgery' as defined under Section 463 I. P. C. reads as follows: (a) A person makes any false document or part of a document. (b) His intention is-(i) to cause damage or injury to the public or to any person, or (ii) to support any claim or title, or title, or (iii) to cause any person to part with property, or (iv) to enter into any express or implied contract, or (v) to commit any fraud or that fraud may be committed. ( 8 ) ADMITTEDLY, there is no fraudulent or dishonest inducement to the complainant. There must be wrongful loss to the complainant to attract the offence of cheating. ( 8 ) ADMITTEDLY, there is no fraudulent or dishonest inducement to the complainant. There must be wrongful loss to the complainant to attract the offence of cheating. As seen from the complaint allegations, it is stated that without his instructions and by forging signatures of the complainant, the accused created insolvency proceedings which is numbered as I. P. No. 99 of 2003 on the file of the Senior Civil Judge, Proddatur and the that the insolvency proceedings have been filed without his knowledge and consent with a mala fide intention to see that he would not recover debts from his debtors who issued cheques and the same was got dismissed by reporting no instructions on 2-8-2005. ( 9 ) IT is not in dispute before this Court that the complainant filed Crl. M. P. No. 1025 of 2005 in S. T. C. No. 49 of 2004 on the file of the i Additional Judicial First Class Magistrate, proddatur, wherein it is stated as follows: "the petitioner submits that the respondent is well aware that he became insolvent filed insolvency petition on the file of the Senior Civil Judge Court, proddatur and he left the house due to heavy pressureofthecreditors, even four months prior to the above said issue of the cheque. . . " The said petition is duly signed by the complainant. Similar petition in Cr. M. P. No. 1024 of 2005 in S. T. C. No. 65of 2004 was also filed by the complainant duly signed by him. Filing of the above said petitions has not been denied or disputed before this Court. It is contended by the learned counsel for the petitioner that as per the instructions of the second respondent herein, the insolvency proceedings have been filed whereunder the details of 36 creditors with dates of borrowing and the amount due have been mentioned and unless the second respondent gives the information it would be impossible for an advocate to prepare and fabricate the insolvency proceedings against the 36 creditors. That has not been denied or disputed by the learned counsel for the second respondent. That has not been denied or disputed by the learned counsel for the second respondent. ( 10 ) SOME of the guidelines laid down by the apex Court in a decision in State of Haryana and others v. Bhajanlal and others, to quash a complaint are as follows: " (3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused. (5) Where the allegations made in the f. I. R. or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused. (7) Where a criminal proceeding is manifestly attended with mala fide and/ or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge. " In the case on hand, it is inherently improbable and no prudent man can believe the version of the complainant. After lapse of 3 years, the present complaint is filed against the petitioner for the reasons best known to the complainant. Even if the allegations in the complaint are taken as true and correct, at this stage no prima facie case for the offences alleged is made out against the petitioner. Hence, continuation of the impugned proceedings is nothing but abuse of process of the court. ( 11 ) THE Criminal Petition is, accordingly, allowed quashing the F. I. R. No. 43 of 2007 of rural Police Station, Proddatur, Kadapa District. .